Com. v. Ford, B. ( 2021 )

J-S02008-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BERNARD FORD :
:
Appellant : No. 549 EDA 2020
Appeal from the PCRA Order Entered January 14, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002505-2014
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: Filed: March 25, 2021
Appellant, Bernard Ford, appeals pro se from the post-conviction court’s
January 14, 2020 order denying his timely-filed petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the facts and procedural history of
Appellant’s case in its Pa.R.A.P. 1925(a) opinion, which we adopt herein. See
PCRA Court Opinion (PCO), 8/31/20, at 1-4. We only note that Appellant pled
guilty to third-degree murder and criminal conspiracy on November 3, 2015.
He was sentenced to an aggregate term of 25 to 50 years’ incarceration, and
we affirmed his judgment of sentence on direct appeal. See Commonwealth
v. Ford, 183 A.3d 1073 (Pa. Super. 2018) (unpublished memorandum).
On April 13, 2018, Appellant filed a timely, pro se PCRA petition.
Counsel was appointed, and filed a motion to withdraw and ‘no-merit’ letter
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
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Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On
December 10, 2019, the court issued a Pa.R.Crim.P. 907 notice of its intent
to dismiss Appellant’s petition without a hearing. Appellant filed a pro se
response, but on January 14, 2020, the court issued an order dismissing his
petition and granting counsel’s motion to withdraw. Appellant filed a timely,
pro se notice of appeal. The court did not order him to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal, but it issued a Rule
1925(a) opinion on August 21, 2020.
Appellant states one issue for our review: “Whether trial counsel was
ineffective by failing to investigate whether Appellant was competent to plead
[guilty]?” Appellant’s Brief at 3.
Our standard of review regarding an order denying post-conviction relief
under the PCRA is whether the determination of the court is supported by the
evidence of record and is free of legal error. Commonwealth v. Ragan, 923
A.2d 1169, 1170 (Pa. 2007). This Court grants great deference to the findings
of the PCRA court, and we will not disturb those findings merely because the
record could support a contrary holding. Commonwealth v. Touw, 781 A.2d
1250, 1252 (Pa. Super. 2001).
Here, Appellant claims that his counsel was ineffective for failing to
ensure that he was competent to enter his guilty plea. According to Appellant,
he admitted at the plea proceeding that he had not taken medications
prescribed for his various mental health conditions on the night before the
plea hearing, yet his attorney failed to investigate whether Appellant was
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competent to enter the plea. He insists that, had counsel conducted such an
investigation, he would have discovered that Appellant was not entering his
plea knowingly, intelligently, and/or voluntarily. Consequently, he claims that
counsel rendered ineffective representation.
In assessing Appellant’s argument, we have reviewed the certified
record, the briefs of the parties, and the applicable law. Additionally, we have
considered the thorough opinion of the Honorable Genece Brinkley of the Court
of Common Pleas of Philadelphia County. We conclude that Judge Brinkley’s
opinion accurately disposes of the issue presented by Appellant. See PCO at
4-8.1 Accordingly, we adopt her opinion as our own, and affirm the order
dismissing Appellant’s PCRA petition for the reasons set forth therein.2
Order affirmed.
____________________________________________
1 We note that Judge Brinkley addresses two additional claims in her opinion
that Appellant has abandoned on appeal. See PCO at 8-10. We express no
opinion on Judge Brinkley’s assessment of those claims.
2 We add that, on direct appeal, Appellant argued that his “plea was entered
unknowingly and involuntarily due to the fact that Appellant was suffering
from mental health illness at the time he entered his plea[,] and had not taken
necessary medication the night before he entered his guilty plea[.]”
Commonwealth v. Ford, No. 3692 EDA 2016, unpublished memorandum at
4 (Pa. Super. filed Jan. 19, 2018) (capitalization omitted). This Court adopted
the trial court’s opinion, in which it concluded that Appellant’s plea was
voluntary and knowing, and that he had failed to demonstrate that his mental
health issues prevented him from understanding the consequences or terms
of his guilty plea. Id. at 5 (citing Trial Court Opinion, 6/5/17, at 9-21). Given
our prior conclusion that Appellant’s plea was voluntary, despite his mental
health issues, his ineffectiveness claim lacks arguable merit.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/25/21
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Circulated 03/03/2021 01:30 ,PM
IN THE COURT OF COMMON PLEAS
11 (Jo .31 t JU•RST JUDCR IMINAL TRIAL DIV ISION YLVANIA
ICIAL
COMMONWEALTH CP-51-CR-0002505-2014
VS.
SUPERIOR COURT
BERNARD FORD 549 EDA 2020
OPINION
I
BRINKLEY, J. AUGUST 31, 2020
Defendant Bernard Ford filed his first petition for relief tinder the Past-Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §9541 et sect. (eff. Jan. 16, 1996), claiming; ineffective assistance of
counsel, trial court errors, and an illegal sentence. After reviewing Defendant's pro se petition
and counsel's no-merit letter lpursuant to Commonwealth v. Finley, 550 A,2d 213 (1988), this
Cotu-tdismissed Defendant's petition based upon counsel's Finley letter. Defendant appealed this
dismissal to the Superior Court, This Court's dismissal should be affirmed.
Backizround
On July 14, 2013, Alfred McCrory died as aresult of multiple gunshot wounds to his
head and torso. On November 14, 2013, after alengthy police investigation, Defendant was
arrested and charged with murder and conspiracy. After he was arrested, Defendant told police
'Defendant originally was represented by James A. Lammendola, Esquire, who submitted aFinley letter on October
23, 2018 .
Subsequently ,Stephen O'Hanion, Esquire represented Defendant. Mr, O'Hanlon submitted aFinley letter
on September 30, 2019, and fully incorporated Mr. Lanvnendola's Finley letter by reference,
that lie was present at the scene of the murder, that all of the men involved in the shooting knew
each other because they sold drugs together on that block, and that McCrory had been shot
because he collected "rent" from Defendant and his friends to sell drugs in the neighborhood but
subsequently brought in new people to the block to sell drugs and did not charge them anything.
On November 2, 2015, Defendant, with his counsel David Desiderio, Esquire, entered into a
Memorandum of Agreement to cooperate with the Commonwealth in which he agreed to testify
as aCommonwealth witness against his friends Terrence Johnson and Spencer Hutchins at their
joint juzy trial. He further agreed to plead guilty to third degree murder and conspiracy. In
exchange, the Commonwealth agreed to make asentencing recommendation commensurate with
Defendant's conduct and level of cooperation.
On November 3, 2015, Defendant appeared before this Court and pled guilty to third
degree murder and criminal conspiracy. This Court accepted Defendant's'guilty plea and
deferred sentencing to allow for apresentence investigation report (PSI) and mental health
evaluation.
On November 12, 2015, Defendant appeared before this Court as aCommonwealth
witness in Hutchins' and Johnson's jury trial. Instead of testifying consistent with his statement
to police, Defendant denied knowing McCrory, denied any knowledge of the murder, and denied
entering into any deal with the Commonwealth. He claimed that his attorney, Mr. Desiderio, had
forced him to plead guilty and that he had failed to take any of his medications on the day of his
guilty plea. (N.T. 11/12/15, p. 7-55).
On November 16, 2015, Defendant appeared before this court with new counsel, Perry
DeMarco, Jr. who argued that Defendant should be permitted to withdraw his guilty plea. After
hearing from several witnesses, listening to argument from both counsel, and reviewing the
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transcript from the guilty plea colloquy, this Court denied Defendant's motion to withdraw his
guilty plea, finding that he knowingly, intelligently, and voluntarily pled guilty, that he was
satisfied with his lawyer's representation at the time of his plea, and that Defendant actively
participated and cooperated with the Commonwealth in preparing for Hutchins' and Johnson's
trial. (N.T. 11/16/15, p. 172-79).
On November 17, 2015, Hutchins' and Johnson's jury trial resumed. Subsequently, the
jury found Hutchins and Johnson not guilty on all charges. On May 3, 2016, newly appointed
defense counsel Jason Kadish, Esquire filed another Petition to Withdraw Guilty Plea. This
Court denied this petition on November 14, 2016.
On that same date, Defendant appeared before this Court for sentencing. This Court
sentenced him to an aggregate term of 25 to 50 years state incarceration. On December 5, 2016,
Defendant filed aNotice of Appeal to Superior Court, The Superior Court affirmed his judgment
of sentence on January 19, 2018.
On April 13, 2018, Defendant filed apro se PCRA petition. On July 27, 2018, James A.
Lammendola, Esquire was appointed as PCRA counsel. On October 23, 2018, he filed ano-merit
letter pursuant to Finley and amotion to withdraw as counsel. Mr. Lammendola was relieved as
counsel on April 23, 2019, On July 17, 2019, Matthew Sullivan, Esquire was appointed as new
counsel. He withdrew as counsel on September 12, 2019. On that same date, Stephen O'Hanlon,
Esquire was appointed as PCRA counsel. On September 30, 2019, Mr. O'Hanlon filed aFinley
letter. On December 10, 2019, this Court sent Defendant aNotice of Intent to Dismiss Pursuant
to Rule 907. On December 24, 2019, Defendant replied to the 907 notice. On January 15, 2020,
this Court dismissed Defendant's petition based upon counsel's Finley letter. On February 4,
2020, Defendant filed aNotice of Appeal to Superior Court.
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Discussion
This Court properly dismissed Defendant's petition based upon counsel's Finley letter.
When reviewing the denial of PCRA relief, the appellate court's review is limited to determining
whether the PCRA court's findings are supported by the record and without legal error.
Commonwealth v. Edmiston, 65 A.3d 339, 619 Pa. 549, 558 (2013) (citing Commonwealth v.
Breakiron, 566 Pa. 323, 781 A.2d 94, 97 n. 4(2001)). The appellate court's scope of review is
limited to the findings of the PCRA court and the evidence on the record of the PCRA court's
hearing, viewed in light most favorable to the prevailing party. Commonwealth v. Fahy, 598 Pa.
584, 959 A.2d 312, 316 (2008) (citing Commonwealth v. Duffey, 585 Pa. 493, 889 A.2d 56, 61
(2005)). The burden is on the petitioner in the PCRA petition to demonstrate by apreponderance
of the evidence that he or she is eligible for PCRA relief. 42 Pa.C.S.A §9543.
First, Defendant claims that trial counsel was ineffective for allowing him to plead guilty
when he was not competent to do so. This claim is wholly without merit. To prevail on aclaim
alleging counsel's ineffectiveness under the PCRA, apetitioner must demonstrate (1) that the
underlying claim is of arguable merit; (2) that counsel's course of conduct was without a
reasonable basis; and (3) that he was prejudiced by counsel's ineffectiveness, i.e, there is a
reasonable probability that but for the acfior othission in question the outcome of the proceedings
would have been different. Commonwealth v. Timchak, 2013 PA Super 157, 69 A.3d 765, 769
(2013) (citing Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)). A petitioner will be
granted relief only when he proves, by apreponderance of the evidence, that his conviction or
sentence resulted from the ineffective assistance of counsel which, in the circumstances of the
particular case, so undermined the truth-determining process that no reliable adjudication of guilt
or innocence could have taken place. Id. (citing 42 Pa.C.S. §9543(a)(2)(ii)). Counsel's assistance
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is deemed constitutionally effective once the court determines that the defendant has not
established any one of the prongs of the ineffectiveness test. Id. (citing Commonwealth V. Rolan,
964 A.2d 398, 406 (Pa.Super.2008)). To establish prejudice, the defendant must show that there
is areasonable probability that the outcome of the proceedings would have been different but for
counsel's action or inaction. Commonwealth v. Davido, 106 A.3d 611, 621 (Pa. 2014) (citing
Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006)). When an appellant fails
to meaningfully discuss each of the three ineffectiveness prongs, "he is not entitled to relief, and
we are constrained to find such claims waived for lack of development." Commonwealth v.
Fears, 624 Pa. 446, 461, 86 A.3d 795, 805 (2014) (quoting Commonwealth v. Steele, 599 Pa.
341, 361, 961 A.2d 786, 797 (2008) ("[U]ndeveloped claims, based on boilerplate allegations,
cannot satisfy Appellant's burden of establishing ineffectiveness. ").
"[A]llegations of ineffectiveness in connection with aguilty plea will serve as abasis for
relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea.
Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea
depends on whether counsel's advice was within the range of competence demanded of attorneys
of criminal cases." Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa.Super,2013)(quoting
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super.2012)). With regard to the voluntariness of
aplea, aguilty plea colloquy must "affirmatively demonstrate the defendant understood what the
plea connoted and its consequences." Willis, 68 A.3d at 1002 (quoting Commonwealth v. Lewis,
708 A.2d 497, 501 (Pa. Super. 1998)), Once the defendant has entered aguilty plea, "it is
presumed that he was aware of what he was doing, and the burden of proving involuntariness is
upon him." Willis, 68 A.3d at 1002 (quoting Commonwealth v. Bedell, 954 A.2d 1209, 1212
(Pa.Super.2008)). "Competence to plead guilty requires afinding that the defendant
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comprehends the crime for which he stands accused, is able to cooperate with his counsel in
forming arational defense, and has arational and factual understanding of the proceedings
against him." Willis, 68 A.3d at 1002, (citing Commonwealth v. Turetsky, 925 A.2d 876(Pa.Super.2007)),
Defendant claims that his attorney, Mr. Desiderio, was ineffective because he allowed
Defendant plead guilty when he allegedly was not competent to do so. This claim is without
merit. The record shows that Defendant knowingly, intelligently, and voluntarily decided to
plead guilty after entering into aMemorandum of Agreement with the Commonwealth. At the
guilty plea hearing on November 3, 2015, Defendant reviewed the written guilty plea colloquy
with his attorney and signed it. This Court then conducted an extremely thorough and detailed
on-the-record colloquy that included specific questions regarding Defendant's mental health and
the medications he was taking. In the Opinion filed in connection with Defendant's direct appeal,
this Court extensively reviewed the record and found Defendant was competent to plead guilty:
THE COURT: Have you ever been apatient in amental institution or been treated
for mental illness?
DEFENDANT: Yes.
THE COURT: And when was that?
DEFENDANT: Idon't know.
THE COURT: You don't know?
DEFENDANT: Iwasn't in amental hospital but Igot mental health problems.
THE COURT: Okay. What is the nature of your mental health problems?
DEFENDANT: My mom said —my mom know better.
MR. DESIDERIO: Iwas informed, by —
THE COURT: Okay. Just one minute. The trial sheet -- the trial list says ADHD,
schizophrenia, and depression with special considerations. So you
reported this to someone else already, right?
DEFENDANT: Yes.
THE COURT: This is on your sheet.
DEFENDANT: Yes.
THE COURT: This is on your sheet. Everybody has it.
DEFENDANT: Yes.
THE COURT: So what's written on the sheet says other —special considerations,
other, ADHD, schizophrenia, and depression.
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DEFENDANT: Yes.
THE COURT: Can you tell me, is it all three of these or --
DEFENDANT: All three.
THE COURT: And when did you -- when were you first diagnosed with these
conditions.
DEFENDANT: I'm not sure.
THE COURT: You're not sure. How old —you're 25 now. So how marry years
have you had these conditions?
DEFENDANT: Since Iwas 1I.
THE COURT: Since you were 11. Are you taking medication?
DEFENDANT: Yes.
THE COURT: What medication are you taking?
DEFENDNAT: Zyprexin and Benadryl.
THE COURT: How often do you take it?
DEFENDANT: Every night.
THE COURT: Okay. So you took it last night?
DEFENDANT: No, Iwas down in Homicide.
THE COURT: Okay. So when's the last time you took your medication?
DEFENDANT: The day before.
THE COURT: The night before?
DEFENDANT: Yeah.
THE COURT: And when you take your medication, what does it do for you?
DEFENDANT: Mellow, calm.
THE COURT: Okay. Do you understand why you're here today?
DEFNEDANT: Yes.
THE COURT: Why are you here today?
DEFENDANT: Enter aguilty plea.
THE COURT: And to what charge?
DEFENDANT: Third degree.
THE COURT: All right, sir. And so, basically what you're saying is that right
now you understand what you're doing?
DEFENDANT: Yes.
THE COURT: And you've had aconversation with your lawyer about it?
DEFENDANT: Yes.
THE COURT: And with your mental health issues you are —you still
understand and your medications are working for you?
DEFENDANT: Yes.
THE COURT: So right now you understand everything that's been said and
done so far today?
DEFENDANT: Yes.
THE COURT: And right now there are no mental health conditions that
would prevent you from continuing with this plea?
DEFENDANT: No.
THE COURT: Okay. And are you satisfied with the representation of your
lawyer up to this point?
DEFENDANT: Yes.
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(N.T. 11/3/15, p. 5-9) (emphasis added). Defendant has failed to meet his burden
as proof as he has failed to provide any evidence that did not know what he was
doing. The record is clear that Defendant understood the nature of the charges
against him; therefore, the voluntariness of the plea has been established. There is
nothing in the record that indicates that Defendant was confused, disoriented,
incoherent or in any way disconnected from reality. To the contrary, Defendant
appropriately engaged with the Court, answered questions in alucid, coherent
manner, and informed the Court that he was present to plead guilty to third degree
murder. As stated above, adefendant is bound by the statements he makes during
his guilty plea colloquy and may not assert grounds for withdrawing the plea that
contradict statements that he made. McCauley, supra. 2 There is no requirement
that Defendant be pleased with the outcome of his decision to plead guilty, "[a]Il
that is required is that [his] decision to plead guilty be knowingly, voluntarily and
intelligently made." Reid, supra.'
(Trial Court Opinion, 6/5/17, p. 15-18). As stated above, "allegations of ineffectiveness in
connection with aguilty plea will serve as abasis for relief only if the ineffectiveness caused the
defendant to enter an involuntary or unknowing plea." Here, the record is clear that Defendant
voluntarily and knowingly entered into his guilty plea. Thus, counsel cannot be found ineffective
and no relief is due.
Next, Defendant claims that this Court erred when it did not permit him to withdraw his
guilty plea. This claim should be deemed previously litigated. For purposes of the PCRA, aclaim
has been previously litigated ifthe highest appellate court in which the petitioner could have had
review as amatter of right has ruled on the merits of the issue. 42 Pa.C.S. §9544(a)(2). On direct
appeal, Defendant raised the following issue: whether the trial court abused its discretion when it
denied Defendant's motion to withdraw his guilty plea. The Superior Court already reviewed this
issue and affirmed this Court's decision to deny Defendant's motion; Defendant did not seek
petition for review before the Pennsylvania Supreme Court. Since the highest appellate court in
zCominonwealth v. McCauley, 797 A.2d 910 (Pa.Super,200I).
Coininonwealth v. Reid, 117 A.3d 777, 783 (2015).
8
which he could have had review has ruled on the merits of this issue already, this claim should
be deemed previously litigated.'
Last, Defendant claims that his sentence exceeded the statutory maximum. This claim is
meritless. This Court sentenced Defendant to 20 to 40 years state incarceration on the third
degree murder conviction and 5to 10 years state incarceration on the criminal conspiracy charge,
to run consecutively to one another. The statutory maximum sentence for third degree murder is
40 years state incarceration. See 18 Pa.C.S. §1102(d). The maximum sentence for criminal
conspiracy to commit murder is also 40 years state incarceration. See 18 Pa.C.S. §1102(c).
Neither of the sentences imposed by this Court exceeded the statutory maximum term of 40
years incarceration. Thus, no relief is due.
4He further claims that this Court lacked jurisdiction to preside over his case. This claim is without merit. See 18
Pa.C.S. §102(a)(1) ("Except as otherwise provided in this section, aperson may be convicted under the law of this
Commonwealth of an offense committed by his own conduct or the conduct of another for which he is legally
accountable if []: (1) the conduct which is an element of the offense or the result which is such an element occurs
within this Commonwealth. ").
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CONCLUSION
After reviewing the applicable case law, statutes, and testimony, this Court committed no
error. This Court properly dismissed Defendant's petition based upon counsel's Finley letter.
Accordingly, no relief is due.
BY THE COURT:
f
J.
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